US Supreme Court Upholds State Laws Barring Transgender Women From Female Sports

The US Supreme Court on Tuesday upheld laws enacted by the States of West Virginia and Idaho restricting participation in women's and girls' sports to biological females, ruling that such measures are consistent with both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment.

In a majority opinion authored by Justice Brett Kavanaugh, the Court held that schools may determine eligibility for women's and girls' sports based on biological sex and that neither federal law nor the Constitution requires states to permit biological males identifying as female to compete on female sports teams.

The ruling reversed decisions of the US Courts of Appeals for the Fourth and Ninth Circuits, which had ruled in favour of transgender students challenging the laws in West Virginia and Idaho respectively. The cases were remanded for further proceedings consistent with the Supreme Court's judgment.

Title IX Permits Sex-Based Sports Teams

The Court said Title IX, enacted in 1972 to prohibit sex discrimination in federally funded educational institutions, expressly allows schools to maintain separate athletic teams for males and females.

Referring to the 1975 regulations implementing Title IX, the Court observed that they authorize "separate teams for members of each sex" where selection is based on competitive skill or the sport is a contact sport. It held that the word "sex" in Title IX and its implementing regulations refers to biological sex, not gender identity.

The majority rejected the contention that Title IX requires schools to create an exception for biological males who identify as female and have undergone puberty suppression or hormone treatment.

"The texts of Title IX, the Javits Amendment, and the Title IX regulations do not say (or even hint) that schools must allow certain biological males to participate in women's and girls' sports," the Court observed.

The Court further held that maintaining separate sports teams based on biological sex is a "reasonable" regulatory choice because of inherent physical differences between males and females and the concerns of safety and competitive fairness in athletics.

Equal Protection Challenge Rejected

Addressing the constitutional challenge, the Court held that the West Virginia and Idaho laws survive intermediate scrutiny applicable to sex-based classifications under the Equal Protection Clause.

According to the Court, the States have important governmental interests in protecting the safety of female athletes and ensuring competitive fairness.

"The States' sex-based classification—limiting women's and girls' sports to biological females—is substantially related to those interests," the Court held.

The Court rejected the argument that States must conduct individualized assessments of transgender athletes based on the effects of hormone treatment or puberty blockers before excluding them from female sports.

It said requiring courts to compare each transgender athlete's physical abilities with those of biological males and females would be "an almost impossible task" and that legislatures and educational institutions are better suited to make such policy determinations.

The Court also rejected the argument that the laws discriminate based on transgender status, observing that they classify participants according to biological sex rather than gender identity. Even assuming they constituted transgender classifications, the laws would satisfy constitutional scrutiny because of the States' interests in safety and competitive fairness, it held.

Ongoing Scientific Debate

The Court noted that the medical and scientific question of whether hormone treatment eliminates the physical advantages associated with male biology remains the subject of continuing debate.

It pointed out that several athletic bodies, including the International Olympic Committee, the US Olympic and Paralympic Committee and the NCAA, have recently adopted policies restricting participation in women's sports to biological females, citing concerns about competitive fairness and safety. The Court said that where such medical and scientific uncertainty exists, legislatures are entitled to considerable latitude in making policy choices.

Court Calls for Respect Towards Student Athletes

While upholding the state laws, the Court acknowledged the aspirations of transgender students who wish to participate in school sports.

"No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified," the Court said, adding that both biological female athletes and transgender students deserve respect.

Justice Clarence Thomas and Justice Neil Gorsuch wrote separate concurring opinions. Justice Sonia Sotomayor filed an opinion concurring in part and dissenting in part, joined by Justices Elena Kagan and Ketanji Brown Jackson, while Justice Jackson also wrote a separate partial concurrence and dissent

Case : West Virginia et al v. BPJ by her Next Friend and Mother Heather Jackson

Click here to read the judgment.